MOHAN SELVARAJ v. GRACE KA MAN O'BRIEN

DCCJ 3872/2018

[2019] HKDC 387

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3872 OF 2018

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DECISION

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1.  This is an application for summary judgment and injunctions in a water leak case.

2.  The plaintiff is the owner of a flat on the 14th floor (“P’s Flat”) of an apartment block and the defendant is the owner of the flat directly above (“D’s Flat”).

3.  The plaintiff case was he first detected water leak on the ceiling of the bathroom in June 2016 and this has continued until January 2019 when no signs of water leakage was detected.

4.  The plaintiff’s case was supported by two inspection reports both commissioned by the Building Department and Food and Environmental Hygiene Department Joint Office (the “Joint Office”). The first report was based on inspections and water leak tests performed around November and December 2017 by Multiple Surveyors Ltd (the “MS Report”) and the second report was based on inspections and water leak tests performed around August 2018 by Modern Testing Consultants Limited (the “MTC Report”).

5.  Both reports concluded that the source of water seepage was from D’s Flat. The MS Report stated the source as “infiltration from the enclosing walls and the floor slab of bathtub of bathroom” (page 75 of Hearing Bundle B). The MTC Report stated that “Infiltration from floor slab including the enclosing walls of the shower area of bathroom was certain” (page 99 of Hearing Bundle B).

6.  The defendant’s case was firstly, that D’s Flat “was simply left vacant with no tenant or occupier living in it at all material times” ever since the defendant emigrated “well before June 2017” (page 71 of hearing Bundle A, paragraph 6 of Affidavit of Sit Ka Yin Priscilla (“Madam Sit”)).

7.  Secondly, the defendant sought to discredit the two inspection reports and Madam Sit stated that she “strongly suspect that water seepage...was due to the particularly heavy rain and typhoon season in the summer of 2017...”

8.  Thirdly, the defendant stated that she had engaged “a house repair / renovation service provider to remove the bathtub altogether and seal the area with water proof sealant and white cement” in June 2018 (paragraph 17 of Madam Sit’s Affidavit, Page 75 of Hearing Bundle A) and that “subsequent confirmatory test...all showed that the problem of water seepage was already resolved...” (paragraph 34 of Madam Sit’s Affidavit, page 80 of Hearing Bundle A).

9.  The legal principle of summary judgment is trite and I need not repeat it here: simply put, the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence.

10.  I also need not repeat the “no presumption of water leak from property above” principle as stated in Leung Yung Chun v Chan Wing Sang [2000] 1HKLRD 456.

11.  The defendant’s first ground was just a bare assertion: she has produced a copy invoice from the Water Service Department (“WSD”) dated 11 December 2014 showing no consumption of water from 2008 to 2014. This is irrelevant since the period of water leak alleged was June 2017 to January 2019.

12.  I also do not accept the submission from Mr. Joseph Wong (“Mr. Wong”), the defendant’s counsel, that the defendant did not have enough time to obtain updated evidence from the WSD: the Summons was taken out in December 2018 and it should be clear right from then that if “no occupier” was a valid ground, much more evidence could be obtained to support this from WSD or otherwise.

13.  Mr. Wong also suggested that the two inspection reports were inconsistent and therefore should be disregarded.

14.  I cannot see what is inconsistent between the two reports: the situation in the bathroom in D’s Flat had been altered between the two reports: as Madam Sit herself stated, the bathtub had been removed, and the change was clearly shown in the photographs enclosed in both reports.

15.  More importantly, whatever remedial work alleged to be done by the defendant’s house repair / renovation service provider, it was clearly ineffective: the defendant stated that the bathtub was removed and the area “sealed by water proof sealant and white cement”, but the MTC Report shows that the dye went straight through the area in the water ponding test resulting in the dye showing in P’s Flat on the same day.

16.  By looking at the photographs enclosed in the MTC Report, I have commented (in my non-expert eyes) that it looked as if the bathtub was simply removed and the floor and walls were left in bare concrete and without tiles.

17.  I think this observation was supported by the MTC Report. On “visual examination on the condition of the suspected area” (page 97 Hearing Bundle B), it reported “sign of poor workmanship or dilapidation” on the “floor surface” and “wall surface enclosing the bathing area” and “no water tight sealant between bathtub / shower tray and the enclosure wall”. One would expect that if there was “water proof sealant” and “white cement” in that area, the MTC Report would have reported such findings.

18.  The defendant also sought to discredit the MTC Report by submitting a letter dated 5 September 2017 from the Joint Office which seemed to suggest that the water ponding test performed on 29 August 2017 was negative (“no immediate color change at the ceiling of bathroom was detected”). However, this letter was written before the MTC Report was released (it stated that “2^nd monitoring of result of the confirmatory test was arranged 3 weeks later”) so it is, at best, an interim update before all confirmatory test was completed. Further, the inspection and tests were done by Modern Testing Consultants Limited and not by the Joint Office, so I see no reason why I should put any weight on what was stated on this letter.

19.  More importantly, Madam Sit has merely proposed a “rain storm hypothesis”. She is not an expert and it is always down to the party who proposed a “hypothesis” must produce expert evidence to support it. (Li Ching Har and Anor v Wong Suk Kit [2019] HKDC 150)

20.  The defendant had plenty of time to seek expert opinion: she stated that “I had strongly suspect that the water seepage...was due to the particularly heavy rain and typhoon in the summer of 2017” (paragraph 11 of her Affidavit, page 72 of Hearing Bundle A) and it was not in dispute that the Joint Office had issued a Nuisance Notice on 17 April 2018. As such, the defendant had all these times to instruct an expert to support her hypothesis but there was no evidence that she has done so. Certainly she has not produced any expert report at any time. Therefore, what she proposed is a “bare” hypothesis from a non-independent non-expert. I see no reason why I should put any weight on this hypothesis.

21.  In any case, it is trite that the fact that there might be other leakage paths would not relieve the defendant from liabilities of the source of water leakage from her own flat as proven by two inspection reports (Wong Ping Chun v Giant King Corporation Limited DCCJ 4020/2012).

22.  As for the defendant’s third ground, I have already addressed above that the MTC Report clearly shows that whatever remedial measure the defendant has done was ineffective.

23.  After considering all the defendant’s grounds, I find that there is no fair or reasonable probability the defendant can show a real or bona fide defence.

24.  In fact, I would go further to say that the situation has been made worst (since the defendant’s “remedial attempt”) than before because the bare concrete floor would now allow any water on the surface to leak straight through (as shown in the quick results in the water ponding test stated in the MTC Report). Even if the defendant’s case was true that D’s Flat was not occupied and thus the bathroom was not in use, the bathroom floor still needed to be properly water-proofed because of the many potential sources of water there: the toilet and the taps of the basin, not to mention all the water pipes and drains concealed or otherwise. Any future leakage of any of these would mean that the water would be leaked straight to the floor below. This is a foreseeable risk. The plaintiff has a legitimate concern because the fact that he could no longer detect signs of water leak since January 2019 might simply be because the bathroom has not been in use, and not that effective water-proofing has been installed. So there is a good arguable case to impose an injunction for the defendant to perform reasonable water-proofing work on the bathroom floor.

Order

25.  I would according allow judgment be entered on liability for all losses and damages to P’s Flat leaving damages to be assessed.

26.  I would also give an injunction that the defendant should take all reasonable measure to remedy the defect as stated under Section E paragraph 1 of the MTC Report within 56 days of this order.

27.  There be an order nisi for the costs of this application be to the plaintiff to be taxed if not agreed, and with certificate for counsel.